SELLING FLORIDA’S UP THE RIVER · Fall, 2015] SELLING FLORIDA’S WATER 71 II. THE UNIQUE GEOLOGY...

69

SELLING FLORIDA’S WATER UP THE RIVER

KAREN CONSALO*

“All the water that will ever be is, right now.”1

~

“When the well is dry, we know the worth of water.”2

I. FLORIDA’S PUBLIC TRUST FOR WATER RESOURCES ............. 70 II. THE UNIQUE GEOLOGY AND HISTORY OF FLORIDA

AS IT RELATES TO POTABLE WATER SUPPLY ........................ 71 III. FLORIDA WATER RESOURCES ACT AND THE WATER

MANAGEMENT DISTRICTS .................................................... 72 IV. THE SCIENCE OF WATER QUALITY ....................................... 75 V. STANDARDS FOR ISSUANCE OF A CONDITIONAL USE

PERMIT ................................................................................. 77 A. St. Johns Riverkeeper, Inc. v. St. Johns River Water

Management District .................................................... 78 B. City of Groveland v. St. Johns River Water

Management District ..................................................... 86 VI. CONCLUSION ........................................................................ 91

The State of Florida is blessed with ecological diversity like no

other place on the planet. Within its borders are over 700 natural

springs, at least thirty of which are first magnitude springs. 3

In addition to these springs, Florida is home to 18 natural

ecosystems, 7,800 lakes, and 82 different plant communities, all of

which results in more biological diversity than any other state in

America.4

While Florida has the second highest rainfall in the United

States, from the northern Okefenokee Swamp to the southern

* Karen Consalo, Esq., has practiced land use law in Central Florida for the last

decade. She graduated Magna Cum Laude from Rollins College in 1997 and with honors from

the University of Florida College of Law in 2000. Mrs. Consalo was awarded a Certificate in

Land Use and Environmental Law from UF College of Law. In 2010, the Florida Bar

recognized Mrs. Consalo's knowledge and expertise in government legal matters and certified

her as an expert in City, County & Local Government law. In recent years, both Rollins

College and Barry University College of Law have invited Mrs. Consalo to teach land use,

environmental, and constitutional law courses to their respective planning and law students.

1. NAT’L GEOGRAPHIC (Oct. 1993).

2. BENJAMIN FRANKLIN, POOR RICHARD’S ALMANACK (1746).

3. WALTER SCHMIDT, ET AL., SPRINGS OF FLORIDA, BULLETIN NO. 66, 29 (Fla. Dep’t of

Envtl. Prot. ed. 2004).

4. Kariena Veaudry, State and Regional Prospectives: Water Quality & Conservation

in Florida, EARTHJURIS, http://earthjuris.org/wp-content/uploads/2011/05/FloridaNative

Plant.pdf. (last visited Feb. 7, 2016).

70 JOURNAL OF LAND USE [Vol. 31:1

Florida Everglades, these bountiful ecosystems are still dependent

to a great degree on the level and flow of underground water

supplies.5 Yet these life sustaining water bodies are under threat

by the very government agency tasked to protect them. By selling

millions upon millions of gallons of water from the Floridan aquifer

to out-of-state bottling interests, Florida’s water management

districts are causing an unnecessary, yet life threatening, depletion

of the aquifer waters. Over the last forty years of regulation by the

water management districts, many of our springs have declined in

quality and flow while others have dried up altogether.6

In Central Florida, the St. Johns River Water Management

District issues numerous Consumptive Use Permits, or CUPs, to

public and private development interests. Often selling millions of

gallons each year for nothing more than a few hundred dollars in

permitting fees. 7 In recent years, the St. Johns River Water

Management District has issued hundreds of millions of gallons in

CUPs despite outcry from both local governments and local citizens.

This article reviews two of the most controversial of these permits.

I. FLORIDA’S PUBLIC TRUST

FOR WATER RESOURCES

Since 1845, the “navigable water bodies” within the State of

Florida, including rivers, lakes and tidelands, have been held in

trust for the benefit of the citizens of this State.8 This protected

status is referred to as the Public Trust Doctrine.9 This Doctrine

imposes a legal duty upon State officials to preserve and control

such waters for public navigation, fishing, swimming, and other

lawful uses. 10 The Florida Constitution incorporates the Public

Trust Doctrine and expressly limits private use of lands under

navigable waters to such uses which are not contrary to the public

interest.11

5. See Chandra S. Pathak, Frequency Analysis of Daily Rainfall Maxima for Central

and South Florida, SFWMD TECHNICAL PUBL’N EMA #390 (Jan. 2001), http://www.sfwmd.

gov/portal/page/portal/pg_grp_tech_pubs/portlet_tech_pubs/ema-390.pdf. In recent decades,

rainfall has averaged fifty-four inches per year with a peak of fifty-seven inches per year in

the 1980s. WETLAND SOLUTIONS, INC., RAINBOW SPRINGS: RESTORATION ACT PLAN, 14

(Howard T. Odum Fla. Springs Inst., ed. 2013).

6. FLA. DEP’T OF ENVTL. PROT., FLORIDA SPRINGS INITIATIVE PROGRAM SUMMARY

AND RECOMMENDATIONS 4 (2007), http://www.dep.state.fl.us/springs/reports/files/FSIreport

2007FINAL.PDF.

7. Ivan Penn, The Profits on Water Are Huge, but the Raw Material Is Free, TAMPA

BAY TIMES, Mar. 15, 2008.

8. Monica K. Reimer, The Public Trust Doctrine: Historical Protection for Florida’s

Navigable Rivers and Lakes, 75 FLA. B.J. 4, 10 (Apr. 2001).

9. Id.

10. Id.

11. FLA. CONST. art. X, § 11.

Fall, 2015] SELLING FLORIDA’S WATER 71

II. THE UNIQUE GEOLOGY

AND HISTORY OF FLORIDA AS IT

RELATES TO POTABLE WATER SUPPLY

Tens of millions of years ago, most of the state of Florida was

submerged deep under ocean waters.12 During that time, the bones

of countless prehistoric sea creatures sank to the ocean floor. 13

Through the eons, these fossils formed a thick layer of limestone.14

When the seabed eventually receded, this limestone became exposed

to air and rain.15 Future rains, with a slightly acidic quality caused

by plant decay, pierced holes in the limestone.16 These holes in the

limestone grew larger and crevasses formed, eventually creating a

labyrinth of chambers and interconnections which filled with

fresh rainwater as well as brackish seawater. 17 These massive

underground storage chambers, which store 60% of Florida’s

freshwater, are collectively referred to as the Floridan Aquifer.18

In 2000, the human demand for potable water was an estimated

6.7 billion gallons per day.19 This is estimated to increase by about

30% to 8.7 billion gallons per day by 2025.20

Despite the impact on our highly water dependent ecosystems,

the State of Florida has one of the highest water withdrawal rates

east of the Mississippi River. 21 The vast majority of this water

is drawn from either the Floridan Aquifer or from surface water

sources such as lakes and rivers.22 Many argue that rather than

continuing to withdraw more and more from our public waters,

better conservation and technological techniques could dramatically

curb the need to continually access more water resources. Support

for this argument may be found in a recent report, which

demonstrated that while Florida’s population is expected to grow by

57% over the next ten years, additional potable water demands will

12. Sinkholes: Florida Grapples with the Wonders of the Not-So-Deep, EARTH MAG.

(Aug. 2010), http://www.earthmagazine.org/article/sinkholes-florida-grapples-wonders-not-

so-deep.

13. Id.

14. Id.

15. Id.

16. Id.

17. Id.

18. Marguerite Koch-Rose, et al., Florida Water Management and Adaptation in the

Face of Climate Change: A White Paper on Climate Change and Florida’s Water Resources,

STATE UNIV. SYS. OF FLA. 5 (Nov. 2011), http://floridaclimate.org/docs/water_managment.pdf.

19. FLA. DEP’T OF ENVTL. PROT., ANNUAL REPORT ON REGIONAL WATER SUPPLY

PLANNING (2010).

20. Id.

21. Sidney F. Ansbacher, Robert D. Fingar, & Adam G. Schwartz, Strictly Speaking,

Does F.S. 376.313(3) Create Duty to Everybody, Everywhere? Part I, 84 FLA. B.J. 36 (2002).

22. Koch-Rose, supra note 18, at 5.

http://www.earthmagazine.org/article/sinkholes-florida-grapples-wonders-not-so-deep

http://www.earthmagazine.org/article/sinkholes-florida-grapples-wonders-not-so-deep

http://floridaclimate.org/docs/water_managment.pdf


only increase by 30%.23 Yet enhanced conservation and advanced

technological efforts will be of little avail if the water management

districts continue to grant CUPs to private commercial interests for

corporate profit, and to the governments which pay little heed to

conservation and will not do so unless required to do so.24

III. FLORIDA WATER RESOURCES ACT

AND THE WATER MANAGEMENT DISTRICTS

Until the 1970’s, Florida’s water withdrawal and allocation laws

were founded upon common law concepts of riparian rights.25 This

legal framework allowed any property owner adjacent to a water

body, known as a “riparian owner,” to freely withdraw and utilize

the water so long as that use did not unreasonably interfere with

other riparian owners.26

On the heels of a severe drought that struck Florida in

1970, however, University of Florida Professor Frank Maloney

led a group of colleagues in the preparation of the Model Water

Code.27 It was Professor Maloney’s intent to present a ready-made

regulatory scheme to preserve water resources for future human

consumption. 28 He developed the innovative, yet quite obvious,

concept of drawing jurisdictional boundaries for water regulation

based upon hydrologic boundaries of various surface basins, rather

than upon existing political boundaries.29

The 1972 Florida Legislature adopted the Model Water Code,

largely as Professor Maloney designed it. The new law became

known as the Florida Water Resources Act of 1972 and was set

forth in chapter 373, Florida Statutes.30 Originally including only

four water management districts, the law currently provides for

five regulatory areas encompassing Florida’s main water basins:

Northwest Florida, Suwannee River, St. Johns River, South Florida,

and Southwest Florida Water Management Districts.31 Each Water

Management District (WMD) is managed by a board of nine

members, except for the South Florida WMD which has thirteen

23. Koch-Rose, supra note 18, at 5.

24. Id.

25. Andrew J. Baumann, General Overview of Riparian Rights in Florida, http://www.

llw-law.com/files/presentations/General%20Overview%20of%20Riparian%20Rights%20in%

20Florida.pdf (last visited on Feb. 7, 2016).

26. Id.

27. FRANK E. MALONEY, RICHARD C. AUSNESS, & JOE SCOTT MORRIS, A MODEL WATER

CODE, WITH COMMENTARY (1972).

28. Id. at preface.

29. Id. at 9.

30. FLA. STAT. § 373.013 (2014).

31. FLA. STAT. § 373.069 (2014).


members.32 These members are appointed by the Governor with

approval confirmed by the Florida Senate. Each member has a term

of four years.33

WMDs function as dependent units of local government, crossing

the political jurisdictional boundaries of cities, counties, and other

regional planning districts.34 Each district is delegated with broad

authority to engage in independent decision making and policy

setting.35 While technically supervised by the Florida Department

of Environmental Protection (FDEP), day-to-day decisions,

particularly with regard to permitting, remains with the WMDs.36

The purpose of a water management district is to plan for water

supply and restoration of Florida’ water bodies including surface

and ground waters.37 To accomplish these goals, the districts are

vested with far reaching authority over almost all waters of the

State including: regulatory authority over wetland conversions,

surface water management facilities, and well construction;

authorization to construct and operate water management

structures such as dames, dikes, levees and pumps; planning for

future water supply; and land acquisition and management.38 In a

demonstration of public support for the goal of protecting water

resources, Florida’s voters passed a constitutional amendment in

1976 to grant each WMD the power to levy ad valorem taxes of up

to 1 mills.39

Of the many tasks delegated to the water management districts,

the most controversial action tends to be the districts’ allowance

of the large water withdrawals from public waters, known as

Consumptive Use Permits, for private and government interests. It

is the overly generous, even frivolous, issuance of these permits by

the St. Johns River Water Management District (WMD) with which

this article is concerned.40

At its heart, a Consumptive Use Permit (CUP) is a government

sanctioned withdrawal of billions of gallons of water from the State’s

water supply. 41 Yet, as demonstrated further in this article,

withdrawal of waters, especially in large amounts, is almost always

32. FLA. STAT. § 373.073(1)(a) (2014).

33. FLA. STAT. § 373.073(1)(b) (2014).

34. FLA. STAT. §§ 373.026, .046, .047 (2014).

35. Id.

36. FLA. STAT. §§ 373.016(5), .026, .069 (2014).

37. FLA. STAT. §§ 373.016(22), .016, .083 (2014).

38. Id.

39. FLA. STAT. ch. 373 (2014).

40. In addition to the cases discussed in this article, many other consumptive use

battles have been fought in Florida. See Kelly Samek, Unknown Quantity: The Bottled Water

Industry and Florida’s Springs, 19 J. LAND USE & ENVTL. L. 569 (2004); Press Release, Food

& Water Watch, Florida Fights Back Against Bottled Water Extraction (Oct. 2, 2008).

41. FLA. STAT. § 373.216 (2014).


deleterious to the health, purity, and functionality of a water

body. Indisputably though, citizens and agricultural interests of

Florida require clean fresh water for survival. The natural cycle of

bountiful summer rainfalls interrupted by several winter months of

draught is insufficient to meet the current needs of Florida’s vast

population: economic and physical development, production of food

products, and maintenance of a high quality of life defined by

manicured lawns, ample potable water for showers and pools, and

even water park amusements. Chapter 373 is drafted such that

water management districts are tasked to carefully balance and

limit the inherent harm to public water bodies by massive water

withdrawals with the public’s need for clean potable water.42

In Professor Maloney’s Model Water Code, he envisioned a

balancing of the immediate human demands for water for

sustenance, hygiene, and recreation, against the hydrologic needs of

our varied ecosystems for the historic water flows and levels upon

which these ecosystems formed.43 The long term goal of the Model

Water Code was to ensure that future Floridians and long standing

ecosystems would have an ample supply of clean water.44 Since

current law allows a consumptive use permit to vest its holder with

the right to withdraw significant amounts of water for up to twenty

years, even fifty years in certain circumstances, it is important that

this balancing act be carefully evaluated during review of every

CUP permit.45

The Floridan Aquifer supplies water at several levels.46 The

ground level, referred to as the Surficial Aquifer, reaches from

the surface to about fifty feet below ground level.47 From 50 feet to

150 below ground level is the Intermediate Confining Unit. 48

Immediately below this, from about 150 feet to 550 feet, is the

Upper Floridan Aquifer.49 Below this is the Middle Semi-Confining

Unit, which extends approximately another 450 feet. 50 Finally,

below this level, is the Lower Floridan Aquifer extending to sea

level.51 Most of the water used for drinking, irrigation, and other

human needs is drawn from the Upper Florida Aquifer.52 Florida is

42. FLA. STAT. § 373.223 (2014); FLA. STAT. § 373.227 (2014).

43. Maloney, supra note 27.

44. Id.

45. Id.

46. Sandra M. Eberts, et al., Assessing the Vulnerability of Public-Supply Wells to

Contamination: Floridan Aquifer System Near Tampa, Florida (U.S. Geological Survey ed.

2009), http://pubs.usgs.gov/fs/2009/3062/pdf/fs20093062.pdf.

47. Id.

48. Id.

49. Id.

50. Id.

51. Id.

52. Eberts, supra note 46.


one of the most highly populated states in America and home to

approximately 20 million residents.53 This population is expected to

increase to approximately 25 million by 2015.54

IV. THE SCIENCE OF WATER QUALITY

Water resource preservation and associated laws are highly

dependent on accurate scientific data, such as analysis of historic

high and low water levels, speed of water flow, catalogue of riparian

and literal habitat and species, and the amounts and types of

pollutants in a particular water body. Data collected from the

hundreds of water bodies across the State is so voluminous that it

must be distilled and summarized in order to draft appropriate

statutes, codes, and policies.

The most common distillation of data relied upon by regulatory

agencies is known as the “Total Maximum Daily Load” or TMDL.55

TMDL is a numerical evaluation of the total amount of a particular

pollutant which a particular water body can receive over a certain

period of time and still maintain its quality.56 TMDLs must be

established by the FDEP for any surface water body in Florida with

low water quality standards.57 Once established, the TMDL allows

for objective analysis as to whether a requested water withdrawal

through a Consumptive Use Permit would be overly harmful to the

quality and viability of the water body.58

Another common distillation of the water quality science is

referred to as “minimum flows and levels” or MFL.59 As the term

implies, this is a two-part analysis of the impact of necessary

minimum water flow and water level of a particular water body to

ensure its health and viability.60 The minimum flow is the “limit at

which further withdrawals would be significantly harmful to the

water resource or ecology of the area.”61 The minimum level is the

level at which “further withdrawals would be significantly harmful

to the water resources of the area.”62 Different water bodies have

different needs so far as rate of flow and water quantity for

53. Noted as 19,074,434 by the St. Johns River Water Management District. ST. JOHNS

RIVER WATER MGT. DIST., 2012 SURVEY OF ESTIMATED ANNUAL WATER USE FOR ST. JOHNS

RIVER WATER MANAGEMENT DISTRICT: TECHNICAL FACT SHEET SJ2013-FSI (2013).

54. Koch-Rose, supra note 18.

55. U.S. ENVTL. PROT. AGENCY, WHAT IS A TMDL?, http://water.epa.gov/lawsregs/laws

guidance/cwa/tmdl/overviewoftmdl.cfm (last visited on Feb. 7, 2016).

56. Id.

57. Id.

58. Id.

59. FLA. STAT. § 373.042 (2014).

60. FLA. STAT. §§ 373.042-.0421 (2014).

61. FLA. STAT. § 373.042(1)(a) (2014).

62. FLA. STAT. § 373.042(1)(b) (2014).


continued viability.63 By analyzing MFL for each water body, an

objective determination is made as to whether a Consumptive Use

Permit would reduce the surface level to a point significantly

harmful to the functionality of the water body and the aquatic or

riparian habitat it supports.64

However, these levels are established by the districts themselves

and may be too liberal; allowing a district to issue more CUPs than

the affected water body can actually assimilate. Overly liberal water

withdrawals can result in:

Reduced water levels;

Brackish and saltwater intrusion as freshwater is

used up;

Saltwater intrusion into wells;

Creation of sink holes;

Destruction of aquatic and literal habitat; and

Increased nutrient loading.65

In 2013, the St. Johns River WMD, as well as the South Florida

WMD and the Southwest Florida WMD, took part in a collaborative

study to predict the future water needs of Central Florida and

ascertain what amount of additional water withdrawals would

be sustainable. 66 The collaboration resulted in a report entitled

“Development of Environmental Measures for Assessing Effects of

Water Level Changes in Lakes and Wetlands in the Central Florida

Water Initiative Area.” 67 This report noted that the traditional

reliance upon more and more consumptive use of water resources

was not a sustainable method by which to accommodate anticipated

population growth in Central Florida. 68 Rather, there was an

immediate need to develop alternative water supplies and engage

in stringent conservation as well as seek ways to modify the extent

of water demand.69

In reaction to these findings, the St. Johns River WMD amended

its CUP permitting rules to limit applicants within the Central

63. FLA. STAT. § 373.042 (2014).

64. FLA. STAT. § 373.042 (2014).

65. S.W. FLA. WATER MGMT. DIST., WEST-CENTRAL FLORIDA’S AQUIFERS: FLORIDA’S

GREAT UNSEEN WATER RESOURCES, https://www.swfwmd.state.fl.us/publications/files/flas_

aquifers.pdf (last visited Feb. 7, 2016); U.S. GEOGRAPHICAL SURVEY, GROUNDWATER

DEPLETION, http://water.usgs.gov/edu/gwdepletion.html (last visited Feb. 7, 2016).

66. Cent. Fla. Water Initiative’s Envtl. Measures Team, Development of Environmental

Measures for Assessing Effects of Water Level Changes in Lakes and Wetlands in the Central

Florida Water Initiative Area, http://cfwiwater.com/pdfs/CFWI_Environmental_Measures_

finalreport.pdf (Nov. 2013) [hereinafter Water Initiative].

67. Id.

68. Id.

69. Id.

http://water.usgs.gov/edu/gwdepletion.html


Florida Study Area to water allocations no greater than the

predicted 2013 demand level.70

V. STANDARDS FOR ISSUANCE

OF A CONDITIONAL USE PERMIT

Chapter 373, Florida Statutes is a detailed legislative work,

which clearly identifies the goal of water resource preservation and

methods by which to obtain such preservation. 71 In regards to

Consumptive Use Permit applications, chapter 373, Florida

Statutes does not create any entitlement of any person or party

to obtain a CUP.72 Rather, the chapter establishes standards which

should be used by the water management districts in determining

whether a CUP application should be granted.73

Considering the purpose of the law, which is to protect and

preserve public water resources, this legislation instructs the water

management district to evaluate the application primarily in regard

to how such application will affect the public interest. In fact, the

three key evaluation standards as set forth in section 373.223, are:

Will not be harmful to the water resource;

Will not be inconsistent with the public interest; and

Is a “reasonable-beneficial” use of the water.74

While definitions of the first two elements are arguably easy to

define, the definition of “reasonable-beneficial” use is not so self-

evident.75 Therefore, section 373.019, Florida Statutes sets forth the

factors which a water management district should consider in order

to determine if a requested consumptive use application is a

“reasonable-beneficial” use. “Reasonable-beneficial” is defined as

“the use of water in such quantity as is necessary for economic and

efficient utilization for a necessary for economic and efficient

utilization for a purpose and in a manner which is both reasonable

and consistent with the public interest.”76 Unfortunately, in issuing

recent consumptive use permits, it appears that the subjective

“reasonable beneficial use” element has become the prevailing, if not

sole, consideration by the St. Johns River WMD in issuance of CUPs.

70. FLA. ADMIN. CODE ch. 40C-1 (2014).

71. FLA. STAT. ch. 373 (2014).

72. Id.

73. FLA. STAT. ch. 373, pt. II (2014).

74. FLA. STAT. § 373.223 (2014).

75. FLA. STAT. § 373 (2014).

76. FLA. STAT. § 373.019(16) (2014).


It may be considered self-evident that no CUP should be issued

by a water management district if the requested water withdraw

would adversely affect the TMDLs, minimum flows and levels,

or otherwise violate the Basin Management Action Plan for a

given water body. Unfortunately, that which seems obvious in a

theoretical world often becomes obscured during the permitting

process. As two recent CUP permits in the Central Florida

Coordination Area demonstrate, despite decades long deterioration

of Central Florida’s lakes, rivers, and springs, the St. Johns

River WMD continues to permit unnecessary and harmful mass

water withdrawals despite public objection that such withdrawals

violate chapter 373 and misuse waters within the Public Trust.77

A. St. Johns Riverkeeper,

Inc. v. St. Johns River Water

Management District78

The St. Johns River (the “River”) is a watershed approximately

310 miles long flowing northward from Indian River County to its

release into the Atlantic Ocean just east of Jacksonville.79 The river

has historically been a source of commerce, recreation, and

ecological diversity.80 It teems with wildlife whose habitat can be

found in the river’s sawgrass lakes, spring runs, tributaries, and

marsh beds.81 Yet it is a notoriously slow moving, or sluggish, water

body, flowing at a rate of approximately one inch per mile.82 Due to

the river’s slow-moving nature, pollutants and saltwater intrusion

do not quickly flush away as they might in a faster moving water

body.83 Additionally, natural or human-caused reductions to water

flow in the St. Johns River also increase the duration and impact of

pollutants and saltwater intrusion.84

In response to the numerous threats to the water quality,

quantity, and health of aquatic life in the St. Johns River, concerned

citizens formed the nonprofit corporation, St. Johns Riverkeeper,

77. Answer Brief for Appellee, St. Johns Riverkeeper, Inc. v. St. Johns River Water

Mgmt. Dist., 54 So. 3d 1051 (Fla. 5th DCA 2011) (Nos. 5D09-1644, 5D09-1646).

78. St. Johns Riverkeeper Inc. v. St. Johns River Water Mgmt. Dist., 54 So. 3d 1051

(Fla. 5th DCA 2011).

79. ST. JOHNS RIVER, http://www.sjrwmd.com/stjohnsriver/ (last visited Feb. 7, 2016).

80. ST. JOHNS RIVER TIMELINE, http://www.stjohnsriverkeeper.org/the-river/history/

(last visited Feb. 7, 2016).

81. ST. JOHNS RIVER, http://www.sjrwmd.com/stjohnsriver/ (last visited Feb. 7, 2016).

82. Id.

83. Id.

84. Initial Brief for Appellant, St. Johns Riverkeeper, Inc. v. St. Johns River Water

Mgmt. Dist., 54 So. 3d 1051 (Fla. 5th DCA 2011) (Nos. 5D09-1644, 5D09-1646).


Inc. (“Riverkeeper”) in 2000.85 The organization is dedicated to the

“protection, preservation, and restoration of the ecological integrity

of the St. Johns River watershed for current users and future

generations.” 86 The group engages in ongoing water quality

monitoring and community education efforts regarding the River.87

In February of 2008, the St. Johns River WMD (“District”) issued

a Notice of Intent to issue a twenty year permit to Seminole County

to withdraw an additional 5.5 million gallons per day (or 2,007,500

millions of gallons per year) of surface water for public water supply,

and the Riverkeeper noticed.88 Similarly, the City of Jacksonville, in

northeast Florida, which relies upon the St. Johns River as a

primary source of drinking water for its population of approximately

one million people, objected to additional withdrawals due to the

anticipated adverse impact on drinking water quality.89 St. Johns

County echoed concerns regarding adverse environmental impacts

of this CUP, particularly in regard to the Wekiva River Aquatic

Preserve and the Black Bear Wilderness Area in Seminole County.90

Seminole County’s application sought water withdrawal for a

variety of uses, including household, commercial, industrial,

landscape irrigation, utilities, and the catch-all: “essential types of

uses.”91 All the water would be withdrawn from the St. Johns River

at the Yankee Lake Water Treatment Facility.92 Notably, the water

requested in Seminole County’s application exceeded the predicated

2013 water demand for Seminole County. 93 Arguably, such an

application would be disallowed in the Central Florida Coordination

Area since the St. Johns River WMD had committed to deny any

CUP that exceeded predicted water demand.94

In asserting standing to challenge issuance of the permit,

Jacksonville also noted that it had unique standing rights as a party

to the 1998 River Accord (“Accord”).95 This Accord memorialized the

85. ST. JOHNS RIVERKEEPER, http://www.stjohnsriverkeeper.org/ (last visited Feb. 7,

2016).

86. Id.

87. Initial Brief for Appellant, supra note 84.

88. Of the 5.5 millions of gallons per day requested by Seminole County, 4.4 would be

used for potable water and the remaining 1.0 would be used to augment reclaimed water

supply. However, only the potable water became subject to challenge. Answer Brief for

Appellee, supra note 77.

89. Id.

90. St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist., Case Nos. 08-

1316, 08-1317, 08-1318 (DOAH Jan. 12, 2009), modified in part by FOR Nos. 2008-31, 2008-

33, 2008-34 (SJRWMD Apr. 15, 2009).

91. Answer Brief for Appellee, supra note 77.

92. Id.

93. Id.

94. Id.

95. THE RIVER ACCORD: A PARTNERSHIP FOR THE ST. JOHNS, http://www.coj.net/

departments/river-accord.aspx (last visited Feb. 7, 2016).

http://www.stjohnsriverkeeper.org/


agreement between the FDEP, the St. Johns WMD, the Jacksonville

Water and Sewer Expansion Authority, and the City of Jacksonville

whereby the parties agreed to jointly invest $700 million to improve

the health and quality of the St. Johns River.96 The Accord imposed

obligations upon the City of Jacksonville to undertake certain

capital improvements in order to reduce pollutant loads and

improve water quality in the river.97

Due to its vast reliance upon and financial commitments toward

the preservation of water quality within the St. Johns River,

the City of Jacksonville challenged the District’s proposed issuance

of this permit as contrary to sound water conservation and

preservation policies.98 Joining the City in the brewing legal battle

were both the Riverkeeper and St. Johns County.99

These concerned parties filed respective petitions for an

administrative hearing with the District in March of 2008.100 The

Petitioners argued that the issuance of this CUP lacked adequate

justification.101 Specifically, Petitioners challenged issuance of the

permit on the following bases:

That the Seminole County failed to meet its

burden to provide reasonable assurances that the

proposed water use met standards for a CUP as

set forth in chapter 373, Florida Statutes.

Issuance of the permit was a detriment to the

water quality improvement efforts mandated in

the Central Florida Coordination Area.102

In regard to its assertion that the proposed permit would violate

the standards of section 373.223, Florida Statutes, the Petitioners

disputed the findings of the St. Johns River WMD Technical Staff

Report determination that issuance of the CUP was a “reasonable

and beneficial use” and was “consistent with the public interest.”103

Rather, the City of Jacksonville argued that additional

withdrawal of water would detrimentally slow, or even stagnate,

the notoriously slow water flow of the River.104 It noted that this

additional withdraw of water could easily turn the historic slow flow

96. Id.

97. Id.


99. Id.

100. Petition for an Administrative Hearing, City of Jacksonville v. St. Johns River

Water Mgmt. Dist. (DOAH 2008) (No. 08-1317).

101. Id.

102. Id.

103. Initial Brief for Appellant, supra note 84, at 10.

104. Id.


into a detrimental “slug” flow which would result in significant

adverse impacts on aquatic species and water quality. 105 Such

impacts would include disruption of the seasonable lifecycle changes

of aquatic species, such as mating and spawning, as well as increase

the extent and size of algae blooms which could deoxygenate the

river and result in wholesale fish kills.106

Jacksonville argued that such significant water withdrawals

would over-salinate the water, further degrading the River’s quality

and ability to support aquatic life, ultimately killing aquatic

vegetation and wildlife.107 At its mouth near Jacksonville, salt water

from the Atlantic Ocean is able to enter and mix with the St. Johns

River. 108 A certain amount of salinity results and is eventually

filtered away by water flow.109 However, when the river level is low,

high tides from the ocean flood the river, resulting in greater salt

water intrusion.110 The extra salinity takes longer to dissipate from

the River during low flow periods, resulting in longer and more

extensive periods of salinity several miles into the River.111

In argument against issuance of the permit, the river advocates

asserted that Seminole County’s average daily household

consumption of water was significantly higher than the average

daily household consumption in either Jacksonville or in St. Johns

County, demonstrating a lack of serious conservation efforts. 112

This difference was noted to be 103 gallons per capita daily (“gpcd”)

in Jacksonville or 90 gpcd in St. Johns County versus the

significantly higher 140 gpcd in Seminole County.113 Petitioners

then noted that Seminole County anticipated even greater average

daily household use by 2025 than what it had in 2008. 114 The

City of Jacksonville suggested that rather than allowing Seminole

County nearly unfettered access to water from the St. Johns River

through this CUP, that the District should demand more aggressive

conservation techniques be implemented by Seminole County and

a lesser CUP granted.115

In addition to their call for better conservation measures in lieu

of massive additional water withdrawals, Petitioners disputed the

District’s finding that the St. Johns River was the “lowest acceptable

105. Id.

106. Id.

107. Id.

108. Id.


110. Id.

111. Petition for an Administrative Hearing, supra note 100.


113. Id. See also Petition for an Administrative Hearing, supra note 100, at 12.




quality water source” available to Seminole County. 116 Rather,

Petitioners noted that stormwater could be successfully used to

fulfill Seminole County’s irrigation demands.117 Of particular focus

was Seminole County’s admission that it expected to have a surplus

of reclaimed water by 2025, which should be used for irrigation

rather than withdrawal of more water from the St. Johns River.118

Jacksonville further asked the District to postpone granting this

additional water withdrawal until the District concluded its

review of four other concurrently pending CUP applications, each

of which would affect the St. Johns River, so that the District could

properly evaluate if the combination of all five CUPs would require

modification of the River’s TMDLs. 119 As explained by the

Riverkeepers, the reduced water flow caused by so many water

withdrawals might lead to increased nutrient loading from chemical

runoff into the river.120 With less water in the river to offset and

dilute runoff, due to the additional conditional use withdrawals, the

ability of the River to flush such chemicals would likely be

dramatically reduced and thereby decrease the allowable TMDL.121

In turn, a reduced TMDL would be an additional reason to deny

Seminole County’s application.122

Further, Jacksonville argued that if the Water Management

District did in fact issue all five pending CUPs, this massive

water withdrawal would result in direct harm to Jacksonville by

forcing the City and other stakeholders to develop new basin plans

at a significant cost of time and money.123 Jacksonville noted that

section 373.016, Florida Statutes requires water management

districts to evaluate the cumulative impacts of all water

withdrawals before issuing additional CUPs, which the St. Johns

WMD had failed to do.124

Similarly, the parties reminded the District that it could not

adequately determine that the environmental and economic harm

caused by issuance of this CUP would be reduced to an acceptable

level, as required by section 373.223, Florida Statutes, since the

District was just starting a two year study of the St. Johns River to

ascertain the extent and cause of environmental concerns in the

116. Petition for an Administrative Hearing, supra note 100, at 12.


118. Id. See also Petition for an Administrative Hearing, supra note 100, at 12.


120. Id. at 8.

121. Id.

122. Id.

123. Id.

124. St. Johns Riverkeeper, Inc., 54 So. 3d at 1053. The Riverkeepers further argued that

the threat of exceeding TMDLs was a violation of section 373.019, Florida Statutes.


River.125 In fact, as noted by the Riverkeepers, the District at that

time had still not even promulgated minimum flow and level

standards for the river.126 In addition to the parties’ allegations that

demonstrable harm would be caused to the St. Johns River by

1) Seminole County’s 25.6 million gallon per day withdrawal and

2) a prediction that additional harm would be caused to the river by

the compounded affect of five new, concurrently issued CUPs, the

parties were also critical of the District’s failure to include any

standards to address the timing or management of the proposed

water withdrawals so as to minimize additional environmental

impacts.127

Jacksonville’s petition was referred to the Division of

Administrative Hearings pursuant to the Florida Administrative

Procedures Act. 128 Seminole County was granted intervener

status to participate in this administrative hearing and associated

legal actions.129 A ten day hearing was held in October of 2008

before Administrative Law Judge, Lawrence Johnston.130 During

the course of this hearing, Seminole County and the District

agreed to a slightly modified permit which limited withdraw on

any day(s) between April 1 and September 15 that followed a day

when the Iron Bridge wastewater treatment facility has discharged

polluted water into the St. Johns River.131

After ten days of testimony, on January 12, 2009, Judge

Johnston issued a Recommended Order advocating issuance of the

permit.132 This order dismissed or disregarded most of the expert

testimony presented by permit opponents.133 While acknowledging

disparities in several aspects of testimony from Seminole County’s

experts, including the key issue of Seminole County’s future water

demands, Judge Johnston found these disparities did not devalue

the evidence.134

Although not apparently asserted by experts from any party,

Judge Johnston also rendered his own factual conclusion that

125. Id. at 1052. The study was known as the St. Johns River Water Withdrawal

Cumulative Impact Study.

126. Id. at 1053; see also Concerned Citizens of Putnam Cnty. for Responsible Gov’t, Inc.

v. St. Johns River Water Mgmt. Dist., 622 So. 2d 520 (Fla. 5th DCA 1993).

127. St. Johns Riverkeeper, Inc., 54 So. 3d at 1053.

128. FLA. STAT. ch. 120 (2014).

129. Memorandum from Stanley Niego to Kris Davis (Mar. 19, 2009) (on file with author)

(regarding adoption of final order for DOAH Case No. 08-1316, 08-1317, 8-1318).

130. Id.



33, 2008-34 (SJRWMD Apr. 15, 2009).

132. Id.

133. Id.

134. Id.


Seminole County’s future withdraw of water from the St. Johns

River would not cause adverse affect since several cities had past

CUP approvals.135 Judge Johnston dismissed concerns regarding

salinity, nutrient loading, and extensive algal blooms.136 He also

dismissed Jacksonville’s suggestion that the CUP should

incorporate the conservation measures set forth in the District’s

own Florida Water Start Program, finding it not appropriate to

include a CUP requirement to implement such conservation tools.137

Judge Johnston concluded that issuance of the permit would be

in the public interest because the environmental harm caused to the

St. Johns River by this additional water withdrawal was at an

acceptable amount. 138 As to the assertion that harm would be

caused to both the Wekiva River Aquatic Preserve and the Seminole

Black Bear Wilderness Area, he simply deferred consideration of

those concerns to some unnamed further required permitting.139

Similarly, the judge passed on any evaluation of adverse impacts at

the pipeline and treatment facility, finding them outside his scope

of review of the public interest component of CUP review.140

In accordance with the Florida Administrative Procedures

Act, after the parties filed exceptions to the ALJ Order, a final

determination on the CUP was considered by the St. Johns

Water Management District Governing Board. 141 In a close 4-3

vote, on April 13, 2009, the District Governing Board adopted the

Recommended Order to grant the permit to Seminole County

modified only in regard to the withdrawals immediately after an

Iron Bridge discharge.142

Not surprisingly, on August 28, 2009 the City of Jacksonville

and the St. Johns Riverkeeper, Inc. filed an appeal before the

Fifth District Court of Appeals challenging issuance of this

permit.143 Jacksonville limited its appeal to the issue of whether

Seminole County had provided “reasonable assurance” that the

5.5 million gallons per day was necessary for “economic and

efficient utilization.”144 Jacksonville objected to Judge Johnston’s

determination that Seminole County would be denied by the

District, in whole or in part, its concurrent application to withdraw

135. Id.

136. Id.



33, 2008-34 (SJRWMD Apr. 15, 2009).

138. Id.

139. Id.

140. Id.

141. FLA. STAT. § 120.57 (2008).

142. St. Johns Riverkeeper, 54 So. 3d at 1052.

143. Id.

144. Id.


25.6 mgd from the Floridan Aquifer.145 Jacksonville noted that such

assumption was nothing more than a prediction, and if the judge

were wrong and the entire concurrent application were in fact

approved, then Seminole County would be able to withdraw

significantly more water than the amount for which it had a

demonstrable need.146

Jacksonville also argued that the consultant retained by

Seminole County to demonstrate potable water needs for the county

over the next twenty years failed to demonstrate that there was not

actually any need for new potable water sources until at least the

seventh year of the permit period and no significant need for potable

water until the eleventh year of the permit period.147 Describing this

as water “banking”, the City of Jacksonville argued that a CUP

should not allow such excessive amounts of water withdrawal.148

The Riverkeepers also argued, via a separate appellate brief,

that the District’s own consumptive use expert determined that

Seminole County would not need any additional water for at least

twenty years. 149 The Riverkeepers further asserted that the

condition prohibiting withdraw within one day of a discharge from

the Iron Bridge facility, was illusory in that Seminole County did

not own or control the Iron Bridge facility.150

In a dismissive response to these arguments, the District

explained that it could sort out any excess allotments when it

reviewed the concurrent groundwater permit application.151 It then

adopted the ALJ Recommended Order with minor modifications and

inclusion of the Iron Bridge discharge limitation.152

On February 18, 2011, the Fifth District Court of Appeals

affirmed the Order of the District Governing Board with little

discussion as to its merits.153 As to the merits of the CUP, the court

only noted that the “administrative proceeding was for the purpose

of ensuring that Seminole’s CUP would not harm the St. Johns

River or that any harm would be offset.” 154 Deferring to the

Administrative Law Judge’s conclusion “that there was no proof of

145. Id.

146. Id.

147. St. Johns Riverkeeper, Inc., 54 So. 3d. at 1052. Such testimony demonstrated a need

of 0.46 MGD in year 7 with no further increase until year 11.

148. Id.

149. Id.

150. Id.

151. Id.

152. St. Johns Riverkeeper, Inc., 54 So. 3d. at 1052.

153. The Court’s discussion centered upon the standing of the St. Johns Riverkeeper,

Inc. In holding that the group did have standing the Court reiterated that the law in regard

to standing must be analyzed separately from analysis of the merits of the case. Id.

154. Id.


harm or that the harm would be offset” the court affirmed without

further analysis of the CUP application.155

B. City of Groveland

v. St. Johns River Water

Management District156

Niagara Bottling Company, LLC is a California bottling

company headquartered in Ontario, Canada. 157 However, it is

allowed to do business in Florida as a registered foreign

corporation.158 The company operates numerous bottling facilities

that withdraw water throughout the United States and resell

this water domestically and internationally.159 In 2009, Niagara

operated a bottling facility at Christopher C. Ford Commerce Park

in Lake County to the northwest of the City of Groveland.160

In 2009, Niagara sought a Consumptive Use Permit to withdraw

an additional 484,000 gallons of water per day (176,660,000 gallons

per year) from three wells to be drilled into the Upper Floridan

Aquifer. 161 Niagara was straightforward in noting that the sole

purpose of this requested water withdrawal was a commercial

enterprise to increase revenues for the corporation. 162 The

application stated the purpose of the withdrawal was primarily to

bottle and resell the water (with approximately 30,000 mgd as a

coolant for facility equipment.)163 As a result, 363,000 gallons would

be bottled and sold for profit and 91,000 would be disposed of as

wastewater each day.164

The associated conservation plan proposed by Niagara detailed

only basic efforts to reduce water spillage and leaks in the

facility. 165 In credit to Niagara, its request for 484,000 million

gallons per day was only 74% of the productive capacity of its

production equipment, the average productivity of the facility.166

Niagara could have requested sufficient water entitlements to

155. Id.

156. City of Groveland v. St. Johns River Water Mgmt. Dist., Case No. 08-4201 (Fla.

DOAH Aug. 7, 2009) (regarding SJWMD Consumptive Use Permit #114010).

157. Id.

158. NIAGARA CONTACT US PAGE, www.niagarawater.com/contact-us/ (last visited

Feb. 7, 2016).

159. City of Groveland v. St. Johns River Water Mgmt. Dist., ALJ Recommended Order,

Case No. 08-4201 (Fla. DOAH Aug. 7, 2009).

160. Id.

161. Id. at 6.

162. Id.

163. Id.

164. Id. at 7.

165. City of Groveland v. St. Johns River Water Mgmt. Dist., ALJ Recommended Order

at 8, Case No. 08-4201 (Fla. DOAH Aug. 7, 2009).

166. Id. at 10.

http://www.niagarawater.com/contact-us/


satisfy 100% daily capacity. 167 Niagara also proposed to send a

portion of the wastewater produced by its bottling facility to a

nearby golf course or municipality for irrigation purposes, reducing

the use of potable water at the facilities.168

The St. Johns Water Management District, as the reviewing

authority, only added a single requirement to this basic

conservation plan, namely that Niagara monitor environmental

quality of the water in Lake Arthur.169 However, this monitoring

requirement failed to include the logical next step: a requirement

that Niagara remediate or mitigate any degradation of

environmental quality indicated by such monitoring.

Rather than limit this commercial water withdrawal or create

assurance that the Public Trust waters would be protected from

degradation, the District placed no substantive protections in place.

Disturbingly, one reviewing official actually congratulated Niagara

on its conservation plans noting that it was far better than prior

conservation plans the District had required of other bottling

companies.170

Due to concerns that this CUP would limit future public water

supply, and harm water resources and related natural systems,

Lake County and the City of Groveland jointly filed a petition with

the District seeking an administrative hearing to challenge issuance

of this permit.171 This petition alleged that the proposed CUP failed

to meet legal standards of section 403.412(5), Florida Statutes, in

that it was not a reasonable-beneficial use, it interfered with

presently existing legal uses of water, and was inconsistent with the

public interest.172

The Petitioners noted the dramatic inconsistency of the

District’s recent water restrictions upon local Lake County

residents’ water usage while permitting Niagara to drawdown the

superficial aquifer, the Upper Floridan Aquifer, and the Lower

Floridan Aquifer, by millions of gallons per day, thereby reducing

water supply available to community residents.173

Further, Petitioners noted that in Groveland’s own preexisting

CUP, the District had required Groveland to utilize alternative

167. Id.

168. Id. at 12.

169. Id. at 8.

170. Id. at 12.

171. City of Groveland v. St. Johns River Water Mgmt. Dist., Joint Petition, Case No.

08-4201 (Fla. DOAH Aug. 28, 2008). The City and Lake County jointly filed a Petition for

Administrative Hearing on Aug. 11, 2008. Lake County subsequently withdrew its petition

on Mar. 3, 2009. The City of Groveland withdrew a number of claims on Mar. 26, 2009,

including its claim that the city would be specially injured by the permit, that the permit

would not adversely affect minimum flows and level or water quality.

172. Id. at 8.

173. Id. at 3.


water sources. 174 Yet it had placed no similar condition on the

out-of-state bottler.175 Such disparate treatment made little sense

since Groveland’s permit predated Niagara’s and, if there was a

need for conservation through alternative water sources in the

past, such need would have only grown since Groveland had begun

withdrawing water for its citizens. 176 Further, the citizens of

Groveland, Florida were the very persons for whom the public

waters were held in trust.177 Why did a Consumptive Use Permit

for out-of-state commercial sale of the water have less stringent

conservation conditions than the CUP which enabled a local

government to provide potable water to the local residents?178

A multi-day administrative hearing was held by Administrative

Law Judge Bram Canter in April of 2009.179 Due to a pre-trial

stipulation in which Groveland retracted many of its claims, the

hearing was limited to the single issue of whether Niagara

demonstrated that the quantity of water requested was necessary

for economic and efficient utilization.180 As in the Seminole County

hearing discussed above, Groveland asserted that the massive

quantity of water requested by Niagara amounted to prohibited

“water banking.”181

Groveland also set forth the most obvious argument against

this additional withdraw from the Floridan Aquifer: bottled water

could be provided by any number of existing bottling companies

with existing water entitlements, so an additional CUP was not

necessary to promote the public interest.182 An argument which

might have been raised, but was not, is that bottled water itself

is not a necessity since nearly all areas of the State and country

are serviced by public utilities or private wells. These utilities and

wells deliver treated water to meet nearly all potable water needs

and at far less a cost than bottled water companies.183 The limited

need which does exist for bottled water is arguably already satisfied

174. Id. at 4.

175. Id. Interestingly, Niagara’s CUP exceeded the total consumptive use from the

Florida Aquifer permitted to the entire City of Groveland of 368,000 MGD.

176. Id.

177. Id.

178. Id.

179. City of Groveland v. St. Johns River Water Mgmt. Dist., ALJ Recommended Order

at 1, Case No. 08-4201 (Fla. DOAH Aug. 7, 2009).

180. Id. at 2.

181. Id. at 10.

182. City of Groveland v. St. Johns River Water Mgmt. Dist., Joint Petition at 16, 5D09-

3765 (Fla. DOAH Aug. 28, 2008).

183. Stephen J. Dubner, The Strange Economics of Water, and Why It Shouldn’t Be Free,

FREAKONOMICS (Apr. 15, 2011, 12:00 pm) http://freakonomics.com/2011/04/15/the-strange-

economics-of-water-and-why-it-shouldnt-be-free-a-guest-post/.


by numerous bottling companies using existing entitlements-such

as Niagara’s own preexisting CUP allotments at the Lake County

facility.

Ultimately Judge Canter found the Petitioner’s arguments

regarding the lack of public need for Niagara to bottle and sell more

water to be irrelevant. Noting that “no statute or rule requires

Niagara to demonstrate that this particular CUP is the only means

to meet consumer demand for bottled water” the judge looked not to

whether the public needed this water, but rather, whether the

corporation needed this water.184 Expanding upon this theory, the

judge stated, “the District does not evaluate the appropriateness of

the associated business or activity, but only whether the applicant

can reasonably be expected to use the requested volume of water,

and to so efficiently based on the industry standard.”185 Yet Judge

Canter failed to note what precedent or authority he had relied upon

in determining whether chapter 373 standards had been met,

appearing to rely solely upon whether Niagara could demonstrate

that it could commercially use the water.

Nor did Judge Canter consider what net environmental

harm could be caused by the water withdrawal. Rather, the judge

determined that Niagara had demonstrated “by a preponderance

of the evidence that the potential for environmental harm ha[d]

been reduced to an acceptable amount.”186 With that standard of

review, and focusing on the wastewater to be generated, the judge

then concluded that since almost all industrial and commercial

water withdrawals convert clean water to wastewater, the only

necessary analysis was whether Niagara’s proposed conversion of

91,000 gallons per day of clean water to wastewater was “efficient”

by industrial standards.187 Relying on Niagara’s assertion that the

requested withdrawal was the anticipated amount its facility could

process each day, the judge found that his efficiency standard had

been satisfied.188

As the designated finder of fact, Judge Cantor essentially

blocked any appellate review regarding the potential environmental

harm by noting, “the wetlands and lakes in the area are not

currently showing signs of environmental harm as a result of

existing groundwater withdrawals.” 189 This determination was

184. Groveland v. St. Johns River Water Mgmt. Dist., ALJ Recommended Order at 10,


185. Id.

186. Id. at 32.

187. Id. at 11.

188 Id.

189. Id. at 18.


made in reliance upon the applicant’s report. 190 Yet from the

record, it is clear that one of Niagara’s own experts would not testify

that this withdrawal of 484,000 gallons each day was ecologically

sound, but rather could only assert that the ecological harm was

“acceptable.”

In fact, Groveland’s expert testified that the drawdown would

adversely affect the local ecology and habitat by reducing the

geographical area of the wetlands. 191 While this expert opinion

seems in-line with the logic that the daily withdrawal of thousands

of gallon of water could result in reduced wetlands, which rely upon

water to remain wet, Judge Canter disregarded Groveland’s expert’s

opinion determining that it was based upon “unconventional

methodology” and “unreasonable assumptions.”192

At the conclusion of this extensive hearing, Judge Canter

issued a Recommended Order in favor of issuance of the 484,000

gallons per day, or up to 176,660,000 gallons per year, CUP.193

Upon consideration of the Administrative Law Judge’s order, on

September 25, 2009, the District Executive Director issued his

agency’s Final Order adopting the Recommended Order essentially

in its entirety.194 Groveland filed an appeal with the Fifth District

Court of Appeals, but voluntarily dismissed it.195

The unfortunate precedent which may be set by this case, at

least in so far as the water management district policy is set, is

that the districts may avoid the public interest evaluation required

by chapter 373, Florida Statutes if a commercial enterprise can

simply demonstrate that: 1) they have the ability to withdraw

the requested water, 2) the ability to convert it to a profitable

enterprise, and 3) the adverse effects of such withdrawal is no

worse than the industry standard. Such evaluation would skip the

very key issue of chapter 373, Florida Statutes: is the withdrawal

of water for a commercial use, such bottling for resale by an out-of-

state bottling company, in the public interest of the citizens of

Florida?

Unfortunately, the unhappy conclusion of this case was not the

end of the story. Niagara thereafter filed a civil suit against the City

of Groveland asserting damages for tortious interference with

190. Groveland v. St. Johns River Water Mgmt. Dist., ALJ Recommended Order at 18,


191. Id. at 19.

192. Id. at 20.

193. Id.

194. City of Groveland v. St. Johns River Water Mgmt. Dist., Case No. 08-4201 (Fla.

SJRWMD Sept. 25, 2009).

194. Id. at 19.

195. Fifth District Court of Appeals Case 5D09-3765 was dismissed via Groveland’s

voluntary dismissal, dated Dec. 7, 2009.


business relationships, among other claims.196 In an effort to avoid

further protracted litigation, in 2010 the City agreed to settle the

litigation with the initial payment of $10,000 of taxpayers money to

Niagara, plus up to an additional $30,000 for Niagara’s expenses

relating to modification of permits, plus all of Niagara’s impact fees

and connection fees, as well as a $1,240,000 credit for Niagara’s city

sewer utility account.

Just three years later, Niagara came back to the St. Johns River

WMD with an application to nearly double this 484,000 gallon per

day withdraw to 910,000 gallons per day.197 In following its liberal

consumptive use permitting for commercial bottling facilities, on

February 12, 2014, the St. Johns Water Management District issued

a permit to allow Niagara to withdraw of an additional 332,150,000

million gallons per year. 198 No opponents dared to appeal this

doubling of the water withdrawal.199

VI. CONCLUSION

These recent decisions by the St. Johns River Water

Management District, affirmed by the Florida Division of

Administrative Hearings and implicitly approved by Florida

Department of Environmental Protection, indicate a lack of effort

to curb excessive and unnecessary water withdrawals from entities

seeking to use public trust waters. In fact, it appears that the

first two elements for review of any CUP: 1) whether the water

withdrawal will harm the water resource, and 2) whether such

withdrawal will be consistent with the public interest, have been

completely disregarded by the District so that only the third

element, whether the requested CUP is a “reasonable-beneficial”

use, is considered at all. In review of this third standard, it seems

that the District has set the bar for what constitutes a “reasonable-

beneficial” use quite low. Such interpretation by the District

hamstrings local governments, such as the City of Jacksonville and

the City of Groveland, in attempting to preserve and protect their

local water resources since chapter 373, Florida Statutes preempts

all local government authority over water withdrawals.

As demonstrated by St. Johns Riverkeeper, Inc. v. St. Johns

River Water Management District, the District may allow a CUP

196. City of Groveland v. St. Johns River Water Mgmt. Dist., Settlement Agreement at

1, Case No. 08-4201 (Jan. 3, 2010) (DOAH 2008; SJWMD 2008).

197. Consumptive Use Permit, St. Johns River Water Mgmt. Dist. to Niagara Bottling,

Permit No. 114010-4 (Feb. 12, 2014).

198. Id.

199. E-mail from Pamela Perry, paralegal for St. Johns River Water Management

District, confirming lack of appeal of CUP 2-069-114010-4 (Mar. 3, 2015) (on file with author).


applicant to withdraw far in excess of demonstrable need. In that

case, opponents to the CUP demonstrated that Seminole County

had a significantly higher per capita rate of water consumption

than comparable Central Florida communities and such per capita

consumption had actually grown in recent years, indicating a lack

of substantive conservation efforts. 200 Yet the District failed

to require the County to engage in conservation measures which

would reduce its water consumption to the level of conservation

demonstrated by other Florida communities.201 Permit opponents

also demonstrated that the water requested by Seminole County for

immediate withdraw was far in excess of what was then needed by

the County.202 Yet the District failed to limit the allowable water

withdrawal to this demonstrable need. The District did very little

to ensure that this CUP for 2,007,500 gallons per year was the

minimum necessary to meet Seminole County’s potable use needs

nor that it would be carefully conserved.

Then, in City of Groveland v. St. Johns River Water Management

District, a case in which the District allowed a Canadian-based

bottling company, Niagara Bottling, to withdraw 177 million gallons

of water per year from the St. Johns River watershed despite

objection from local governments Groveland and Lake County

regarding the impact of this withdraw on local citizens’ water

resources and environmental harm to community waters. 203 Yet

neither the District nor the Administrative Law Judge considered

whether such an expansive gift of Florida waters to Niagara was

actually in the public interest of Florida citizens.204 Rather, they

simply evaluated whether this commercial enterprise could use and

profit from the water withdrawal.205 It is difficult to see how any

aspect of this commercial enterprise, creating profit for a foreign

corporation, had any benefit to the Florida public interest.

Chapter 373, Florida Statutes was drafted to create a reasonable

balance between conserving and sustaining Florida’s Public Trust

waters for current and future residents while still enabling use of

the waters for “reasonable beneficial” uses.206 Yet this balancing test

requires basic conservation efforts from the CUP applicant to


(Fla. 5th DCA 2011). See also Cynthia Barnett, Our Water Our Florida: A Water Ethic for

Florida, COLLINS CENTER FOR PUBLIC POLICY (Feb. 2011) (noting that average daily water

consumption in Sarasota County is less 80 gallons per day).


(Fla. 5th DCA 2011).

202. Id.

203. City of Groveland v. St. Johns River Water Mgmt. Dist., ALJ Recommended

Order, Case No. 08-4201 (Fla. DOAH Aug. 7, 2009). 204. Id.

205. Id. 206. FLA. STAT. § 373.016(4)(a) (2014).


demonstrate that it has attempted to reduce the water needed.207

Further, the District should evaluate whether the applicant will

use the water to benefit Florida citizens or private commercial

interests, local or foreign interests. Further, the District should

evaluate if there existing a demonstrable need for the amount of

water requested during the period requested or if the applicant is

simply “water banking.” And of course, the environmental impact of

any water withdraw should be a paramount consideration prior to

issuance of any permitted consumptive use.

A Consumptive Use Permit can last for twenty, even fifty

years.208 Therefore, wasteful CUPs and the potential harm they

cause to the water supply and environment can have very long-

lasting effects. It is time to evaluate if selling off the already

stressed ground and surface waters of Florida to foreign commercial

bottling interests could ever pass the public interest requirement

of chapter 373, Florida Statutes. Or, at least, where such CUPs

would not provide much benefit to the public interest, require the

applicant and beneficiary to pay a fair market value to the State of

Florida for such waters. This fee which might then be used to

remediate some of the damage caused by massive withdrawals from

our public waters.

Communities in other states have in fact stood up to bottling

companies like Niagara and halted the withdrawal of their public

resources for corporate profit. In 2008, the community of McCloud,

California stopped Nestle Corporation from pumping water from

from Mount Shasta Springs. 209 In Wells, Maine the community

fought an exhaustive battle to stop Nestle from opening a well to

feed its Poland Springs brand.210 As explained by Wenonah Hauter,

the executive director of Food and Water Watch, “[c]ommunities

around the country are mobilizing to stop the confiscation of their

water by corporate interests. They want control of their water for

their own purposes, not to see it commoditized and sold back to them

at over 250 times its actual value.”211 It is time for Florida citizens

to speak up too and defend our own water resources.

207. FLA. STAT. §§ 373.016, .227 (2014).

208. FLA. STAT. § 373.236 (2014).

209. Press Release, Food & Water Watch, Activists Celebrate Nestle Withdrawal from

McCloud, Calif. (Sept. 11, 2009) http://www.foodandwaterwatch.org/news/activists-celebrate-

nestle-withdrawal-mccloud-california.

210. PBS News Hour, Bottling Giant, Maine Residents Battle Over Water (Aug. 18, 2008).

http://www.pbs.org/newshour/bb/environment-july-dec08-waterbottle_08-18/.

211. Press Release, Food & Water Watch, Florida Fights Back Against Bottled Water

Extraction (Oct. 2, 2008) http://www.alternet.org/story/103386/florida_fights_back_against_

bottled_water_extraction.

SELLING FLORIDA’S UP THE RIVER · Fall, 2015] SELLING FLORIDA’S WATER 71 II. THE UNIQUE GEOLOGY...

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